Capital punishment is reserved primarily for the charge of murder but has been extended by some states to include rape and kidnapping. During Clinton’s management of the Drug War capital punishment on the federal level was extended to international narco-trafficking though no one has been yet put to death for carrying illegal drugs across American borders.
There are two common ideas lending reason to allowing the state the power to put a citizen to death. One is retribution and generally not acknowledged except in victim statements, where people find it very reasonable. We don’t usually argue with Aunt Martha when she cheers the death of the madman who killed her husband and daughter. The state, on the other hand, has been found by the Supreme Court to have no interest in retribution.
The other idea is deterrence, and this is generally accepted as the state’s interest in execution. The idea is to show potential murderers and psychopaths that there is a deadly cost to their actions, so they will think twice before committing them.
The logic sounds credible on the face of things. Even among people who go to prison, as horrible a place as that is, there is a strong desire to live. Very few people really don’t care whether they live or die, as the survival instinct is quite a strong one. I’m not going to suggest that those people who don’t care are over-represented in the death row population. This may or may not be true. I am going to argue that the nature of most heinous crimes and the reality of the capital sentencing process eliminate the deterrent value altogether.
First we can take a look at arbitrary sentencing which takes place along geographic, racial, sex, and class lines. Simply put, there is no sure way to predict which crimes are going to get the criminal executed. Person A and Person B are in no way predictably going to receive the same death sentence. This is firmly supported by a number of studies over the past decades.
In the Philadelphia study (1998), carried out by long-time death penalty researcher David Baldus, researchers found that “black defendants on average face a distinctly higher risk of receiving a death sentence than all other similarly situated defendants.” The race of the victim was implicated as well. Those accused in cases with white victims faced on average a 4.3 times higher risk of receiving the death sentence. Kill a person of color, and you’re much less likely to get the death penalty, so the moral goes.
Supreme Court Justice Ruth Bader Ginsburg was quoted as having “never seen a death penalty case on appeal before this court in which the defendant was well represented at trial.” Since the challenges to the death penalty during the 1970’s, resulting from too many innocent people put to death, states have had to create new systems to administer the sentencing portion of the trial.
Two part, or bifurcated, trials are now mandatory with some states further mandating an automatic appeals process. Mitigating evidence for the defendant must be accepted and often victim families are allowed to speak. Juries of the first part of the trial are only allowed to recommend the death penalty, it is the judge who makes the final decision.
Because of this special format, many of the most inexperienced lawyers fresh from school, provided to the defendant by the state, simply don’t know how to take care of their clients. Be able to afford a lawyer of your own choice, and you’re much less likely to get the death penalty, so the moral goes. (Note that even though trials have been extended to make sure innocent people are not killed, DNA evidence has revealed many more innocent people sit on death row and have been executed in recent years.)
We all know that there are fewer women compared to men now sitting on death row. This is not an act of chivalry though. Women really do commit heinous crimes much less frequently though, however…a big however. The number of women on death row, according to Elizabeth Rapaport in an article for Law & Society, is not nearly equivalent to the number of heinous murders committed by women.
The difference here is one of type. Men mostly kill strangers. They want money or to avenge supposedly stolen money. Men want to dominate strangers. These crimes are more than adequately represented on death row. Women killers on the other hand are mostly killing intimates, people they live with. Crimes of this domestic nature are poorly represented on death row. Kill someone you know and love, and you’re less likely to get the death penalty, so the moral goes.
Finally geographic location plays a large role in who gets the death penalty. Certain districts in Texas are notorious for having a gung-ho district attorney intent on seeking execution at every possible opportunity, while D.A’s in other counties are much more judicious in who they seek to have put to death. The same is true across the country in states allowing the death penalty, because there is no set of objective criteria for D.A.’s to follow in deciding who to charge with a capital offense. At this point it is a game of personalities, history of accusations, and whether the D.A. is appointed or elected. The moral is obviously to do your homework on who will be trying your case, and you’ll be much less likely to get the death penalty.
Now, any reasonable person knows the morals I’ve cited above are patently absurd. Very few cases of murders will actually be carried out by people seeking to avoid being sentenced to death. This is perhaps the best means of understanding how ridiculous it is to believe that the death penalty would deter any criminal. If murderers are not actively thinking about the morals above in an attempt to not be killed by the state, what makes anyone think that they are thinking about the death penalty at all?